How to avoid potential cox.net-like disasters

Just days before the official start of the 2009 holiday shopping season, the cox.net domain was added to the FCC's wireless domain list. This presented marketers with a troubling dilemma: is it safe to continue e-mail sending messages to cox.net subscribers?

Clearly, cox.net is not a domain "specifically for wireless devices," as defined by the Code of Federal Regulations, Title 47 (47 c.f.r. 64.3100(e)). Although Cox Communications recently affirmed its commitment to entering the wireless market, its primary domain also is used by millions of subscribers to Cox's residential Internet service. The inclusion of cox.net on the "wireless" domains list was, therefore, an obvious mistake.

However, the FCC list has the force of law.

Until the domain was removed from the list, it was technically illegal to send commercial messages to a wireless domain. Authorization is only considered valid if it follows a disclosure that "the subscriber may be charged by his/her wireless service provider in connection with receipt of such messages." (The rules allow a “safe harbor” defense for violations occurring during a 30-day grace period after a domain is added to the list; however, "willful" violations are still prohibited during this time.)

The cox.net snafu was resolved within 48 hours. But the situation exposed a flaw in the domain listing process. Three simple steps could lead to better handling of future errors:

Prevention: According to FCC 04-194, “if a wireless carrier offered general electronic mail service not designed specifically for mobile devices, such service would not be covered.” If the Cox employee who submitted the company's domains saw this plain language on the submission form, the error might have been prevented.

Crowd-sourcing errors: Since ESPs and marketers are the primary consumers of the wireless list, we will be the first to notice mistakes. Just as wireless providers can easily submit a form to the FCC to include domains on the list, a similar form could allow the FCC to receive reports from the public suspecting errors.

Change logging: The wireless domains download page makes it easy to see when a domain is added, and ESPs are encouraged to download the list and automatically block mail sent to listed domains. A similar list of domains that have been removed from the list would allow users to automatically resume communication with these domains.

The FCC wireless domain list is an important tracking mechanism for organizations sending e-mail. With these suggested updates to the process, the list will become even more effective for the ESPs and marketers who rely on it to protect wireless users from receiving unwanted messages that their providers charge them to receive.